Excerpt: - - there also the petitioner and his parents had treated her very badly, some persons had intervened and she was sent to her father's place. it is no doubt that the wife was living at a different place but that does not mean that no opportunity was given for conciliation, as order-sheets clearly indicate adjournment for the purpose......he found that it was the wife who deserted the husband without just cause and that there was no evidence of ill-treatment by the husband. he also found that the husband was not impotent and there was no proof that the marriage was not consummated. he therefore passed a decree for restitution of conjugal rights. the wife has now come up in appeal.9. the main grievance appears to be that the court has not allowed her to lead proper evidence. we think there is some substance in this contention. the order-sheets indicated that on the date when the evidence was fixed the witness that was summoned did not appear nor could she appear. instead a telegram was sent on that date in which it was said that 'train missed pray adjournment'. the appellant had no other witness present in court. the.....

Judgment:

1. This is an appeal against a judgment and decree passed by the District Judge, Ujjain on a petition under Section 9 of the Hindu Marriage Act of 1955.

2. The petition was filed by one Manishankar against his wife Manoramabai. They were married on 22-5-57. After marriage for two years Manoramabai continued to live with Manishankar as his wife and they lived happily at Ujjain. On 10-1-59, father of Manoramabai look her away for some treatment to Shajapur. When Manoramabai went she had with her ornaments belonging to the petitioner.

3. In 1960 and before that the petitioner had written several letters to his wife and also to his father-in-law but either there was no reply or false replies were given. In 1960 he personally went to the house of his father-in-law and requested personally to send his wife back, but he did not succeed in bringing her back. Subsequently also he made several attempts to bring his wife but he was not successful.

4. Manoramabai, the petitioner further alleged was acting in the school as a teacher. The petitioner tried to meet her at Akodia where she had been serving, but her father prevented her from doing so. Ultimately on 4-12-62, Manishankar sent a notice asking her to come but there was no reply nor the wife came to him to live. In this way the plaintiff Manishankar alleged that without any proper ground his wife was remaining away and she has been depriving him of conjugal rights.

5. In reply Manoramabai admitted her marriage with the petitioner. She submitted that it was the petitioner who deserted her from 1960. After marriage she remained at Ujjain till 1959 but the petitioner started treating her cruelly and gave her both mental and physical pain. She denied that on 10-1-59 her father had taken her to Shajapur on any false pretext of treatment. She submitted however that her father came there on 10-1-60 and came to Shajapur for treatment of the injuries she had received on account of physical injuries caused to her by the petitioner himself. In fact her father came on receipt of the letter from the petitioner on 7-1-60.

6. She denied taking away any ornaments belonging to the petitioner. Whatever she had taken, she submitted belonged to her. She further submitted that in February 1960 the petitioner himself came to the house of her father and stayed there for two months. After that in April 1960 he asked her to sit for Middle School Examination at Ujjain. There they stayed for about 10 or 12 months in a Dharmashala. There also the petitioner and his parents had treated her very badly, some persons had intervened and she was sent to her father's place. After reaching Shajapur also the petitioner remained at the house of the father-in-law. She denied all the other allegations made against her and attempt made by the petitioner to bring her back. She also denied that the petitioner had even come to Akodia to take her.

7. She admitted that she received a notice but as all the allegations in the notice were false and showed unsoundness of mind she did not reply. She asserted that the petitioner had been treating her cruelly and gave her physical and mental torture which compelled her to take some employment. Ultimately she pleaded that the petitioner was a person of unsound mind and he was also impotent. The marriage was therefore not consummated.

8. The learned District Judge after framing issues fixed the case for evidence. Ultimately he found that it was the wife who deserted the husband without just cause and that there was no evidence of ill-treatment by the husband. He also found that the husband was not impotent and there was no proof that the marriage was not consummated. He therefore passed a decree for restitution of conjugal rights. The wife has now come up in appeal.

9. The main grievance appears to be that the Court has not allowed her to lead proper evidence. We think there is some substance in this contention. The order-sheets indicated that on the date when the evidence was fixed the witness that was summoned did not appear nor could she appear. Instead a telegram was sent on that date in which it was said that 'train missed pray adjournment'. The appellant had no other witness present in Court. The sender of the telegram was her father.

10. An application was made praying foradjournment by the counsel of the appellant.He attached the telegram with the said application. The record shows that the witness couldnot be served because proper addresswas not given. The counsel prayed for adjournment for summoning the witness again.That was also refused. The Court howeverlook the evidence of the plaintiff who examined himself and on the basis of this evidence,the Court passed the decree for restitution ofconjugal right.

11. It is clear that the lower Court did not act properly. It is not disputed that the petitioner missed the train. As to whether she could come by a bus or not is not very material and it also does not appear from the record as to whether there was any bus service at the relevant time. Moreover the witness was also not served for want of proper address. The Court should have asked the defendant to give proper address and if the proper address was not supplied then of course the Court could have refused the adjournment. Unless the Court came to the conclusion that it was to prolong the proceedings that the incorrect address was given, the Court should not have refused adjournment. No doubt a correct address has to be given but mistakes do occur and unless it is shown that incorrect address was deliberately given, an opportunity should always be given for resummoning the witness.

12. In this case very serious allegations have been made against the plaintiff. The allegations go to the root of the matrimonial relations. The allegations of impotency and cruel treatment can only be established by the wife. The facts indicate that the parties live separately for a long time. The only question is whether it is because of the ill treatment of the applicant and impotency or that the wife left of her own accord in spite of all comforts the husband would give her.

13. The Court must always come to a definite finding on this question. If really the husband is impotent there is no question of restitution of conjugal right. If the wife cannot prove the same a decree certainly can be given, but she should be given an opportunity. It is also clear that she was serving in a school and was not in a position to attend the Court every day and the missing of the train cannot be said to be an unusual circumstance so that she could be deprived of the opportunity.

14. So far as other questions are concerned viz., about the grant of time for conciliation, we do not think there is any substance. From the order-sheet it is clear that time was given for the purpose. It is no doubt that the wife was living at a different place but that does not mean that no opportunity was given for conciliation, as order-sheets clearly indicate adjournment for the purpose.

15. It is contended that the petition was presented under Section 9 of the Act without following the rules framed by the High Court. He submits that the certified copy of the marriage register was not filed along with the petition as per rules. We do not think that is fatal to the case. The marriage has not been challenged. It is only under certain circumstances that the filing of the copy becomes important viz., when the proceedings are ex parte or the marriage is being challenged.

16. As we feel that the appellant shouldhave been given opportunity to prove her case,we allow the appeal, set aside the judgment anddecree of the lower Court and send the casehack to the lower Court with direction to givethe appellant opportunity to produce her evidence and then dispose of the case accordingto law. The respondent examined himself possibly as no witness from the other side was present. He may also be allowed to lead further evidence, if he so desires. The costs ofthis appeal will be costs in the cause.